Serbia Threatens ICJ Litigation Over Kosovo Independence

by Julian Ku

This month, Kosovo is planning to declare independence with the support of the EU and the United States. Russia and Serbia are dead-set opposed and Russia in particular is making all sorts of ugly noises about any potential Security Council resolutions on this topic.

Serbia is also getting ready to try to block independence, although it seems like they have less leverage over the US and EU. One interesting possibility recently floated by Serbia’s prime minister: an application to the International Court of Justice to rule on the legality of Kosovo’s declaration of independence.

As a practical matter, NATO removed Kosovo from Serbia back in 1999. But as a formal matter, everyone has played along with the legal fiction that Kosovo is still part of Serbia. I’m not exactly sure what a Serbian ICJ claim might look like, but it might prove an interesting side story to this looming international crisis.

2 Responses

Julian,

Well, my guess is that Serbia will lodge an application against countries that recognize Kosovo as independent, with the legal argument being that states have a duty not to recognize proto-states which have been created in violation of international law, i.e. in violation of Serbia’s sovereignty and the UN Charter, etc., etc., pursuant to the ICJ’s decisions in the Namibia, East Timor and Wall cases, etc., etc. Furthermore, Serbia would argue that the right of self-determination of the Kosovo people cannot be exercised without respect for the territorial integrity of Serbia, a democratic state and a UN member, which (these days) respects its international human rights obligations, and that therefore the Kosovo Albanians cannot consider themselves to be an oppressed people for the purposes of self-determination.

That would, I think, be the Serbian legal argument in a nutshell. Though you are completely right that the Serbian sovereignty over Kosovo is nothing more than a ‘legal fiction’, this is not a legal argument without any merit, primarily due to the prevarication of the international community, and the Western countries in particular, in settling on generally accepted criteria for human rights-based claims to self-determination, and of course because of the dubious legality of the NATO intervention in Kosovo itself. In other words, Serbia can say with some validity, why didn’t Kosovo become independent 8 years ago, in 1999, when the Albanians were undoubtedly oppressed by Milosevic – why does that have to happen now, when we are prepared to accommodate their rights and autonomy to the fullest?

If this case ever came before the ICJ and actually went though to the merits, my guess is that the Court would be horribly split in the end. But the biggest problem for Serbia is in finding a jurisdictional basis for lodging such application in the first place. The only two possibilities are jurisdiction based on the declarations made under Article 36(2) of the Statute, and perhaps some vague friendship treaties which could be interpreted to contain a duty not to violate the other state’s sovereignty, and which contain a compromisory clause, though I honestly don’t know whether Serbia has any such treaties.

When it comes to Art. 36(2) declarations, there’s quite quite a few states that Serbia could potentially sue. The big problem is Serbia’s own declaration under Art. 36(2). There’s the old one made by the FRY in 1999 in order to lodge the NATO cases, but that one is no longer listed on the Court’s website. Serbia could always make a new declaration, but a number of other states (notably the UK) have limitations which might preclude jurisdiction. We’ll see.

12.11.2007
at 4:35 am EST Marko Milanovic

I do not see a reason to give independence to Kosovo.

Kosovo was never a state, but just a region within Serbia.

It was part of the Ottoman Empire(as well as the whole region of the Balkans) and part of greater Albanian nazi state.

The only argument is that Albanians make more than 90% of the population.

Albanians laso treat with the violence if they do not gain independnce.

What about Serbs in Croatia and Bosnia?

They where forced to accept the goverment and internal borders of the former Yu republics.

SO why do not we expect the same form the Albanias?

International law, histoy and moral values scream:Kosovo is part of Serbia. And that’s the way how it should stay.

12.11.2007
at 10:31 am EST John

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